Sue and Settle: Regulating Behind Closed Doors | U.S. Chamber of Commerce

Sue and Settle: Regulating Behind Closed Doors

Thursday, July 6, 2017 - 3:30pm

What is Sue and Settle?

"Sue and Settle" refers to when a federal agency agrees to a settlement agreement, in a lawsuit from special interest groups, to create priorities and rules outside of the normal rulemaking process.  The agency intentionally relinquishes statutory discretion by committing to timelines and priorities that often realign agency duties.  These settlement agreements are negotiated behind closed doors with no participation from the public or affected parties.

As an example, between 2009 and 2012, EPA chose not to defend itself in over 60 lawsuits from special interest advocacy groups.  These cases resulted in settlement agreements and EPA publishing more than 100 new regulations - including the recent Clean Power Plan.

Under the new Trump administration, EPA Administrator Scott Pruitt stated in March 2017 that the EPA intended to end the practice of sue and settle.  In an interview, Administrator Pruitt said, "one of the things we’ve done internally… is send a memo out to our regions and also to headquarters to say that the days of sue and settle, the days of consent decrees governing this agency where the EPA gets sued by an NGO, a third party, and that third party sets the agenda, sets the timelines on how we do rulemaking, and bypassing rulemaking entirely have ended. (Source)


Recent Notices of Intent to Sue on EPA's Website

6/21/2017CAA, Center for Biological Diversity, the Center for Environmental Health and the Sierra Club
For failure to perform mandatory duty to ensure adequate protection against conflicts of interest in air pollution permitting and enforcement
6/7/2017CAA, Center for Biological Diversity, Center for Environmental Health
For failure to take final action re ozone nonattainment areas state implementation plans to address Photochemical Assessment Monitoring Stations (PAMS)
5/18/2017CAA, Small Retailers Coalition
For EPA's noncompliance with sections 603 and 604 of the RFA
5/8/2017CWA, Natural Resources Defence Council
NoI attached with district court complaint
For a full list of EPA's Notices of Intent to Sue, visit http://www.epa.gov/ogc/noi.html

What is New in Sue and Settle?

    May 2017

    See all -- Sue and Settle News Archive



    What are the Economic Implications of our Findings?


    Interactive List of All Sue & Settle Cases

    Also see this alternate table, which lists court cases resolved by agency action in response to legal challenges.


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